Editor’s Message

Sandra Day O’Connor

Betsy S. Kimball, Editor

In late October, Sandra Day O’Connor, now 88, announced that she is suffering from dementia – a cruel fate for a brilliant mind. It was too late in this issue’s cycle to recruit someone to write about her career, so I decided to do it myself here in my Editor’s Message.

Justice O’Connor was the first woman to serve on the Supreme Court of the United States. Her story is well known to my generation of women and should be remembered by all. In 1952, she graduated from Stanford Law School, third in her class. No law firm would hire her – as a lawyer. She had to offer to work for no pay and share space with a secretary before she was hired by the San Mateo County Counsel. She and her husband raised three sons. She eventually entered Republican politics in Arizona and had risen to the Arizona Court of Appeals when Pres. Reagan nominated her to the Supreme Court in 1981. A moderate Republican, she was unanimously confirmed by the Senate. In 1988, she was diagnosed with breast cancer, had a mastectomy, and underwent chemotherapy. She worked through it.

In the latter half of her tenure, Justice O’Connor was arguably the Court’s swing vote – followed in that role by Anthony Kennedy after she retired in 2006. I claim no constitutional scholarship, but my view is that Justice O’Connor’s most consequential vote was with the 5-4 majority (Rehnquist, Scalia, Kennedy, Thomas, O’Connor) in Bush v. Gore (2000) 531 U.S. 98. The Court’s decision effectively ended a manual ballot recount (ordered by the Florida Supreme Court) and awarded Florida’s 25 electoral votes (and the presidency) to George W. Bush. (How different history would be had Justice O’Connor voted with the four dissenters.) Justice John Paul Stevens wrote in dissent, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”Prescient.

At Justice Kagan’s investiture, 2010

Justice O’Connor wrote several opinions that we are likely to hear about over the next year or two. One is her plurality opinion (with Kennedy and Souter) in Planned Parenthood v. Casey (1992) 505 U.S. 833, in which the Court reaffirmed that the “[c]onstitutional protection of a woman’s decision to terminate a pregnancy derives from the Due Process Clause of the Fourteenth Amendment.” Another is her plurality opinion (with Rehnquist, Kennedy, Breyer) in Hamdi v. Rumsfeld (2004) 542 U.S. 507. Yaser Hamdi was a US citizen detained by the military in Afghanistan and held as an enemy combatant without a hearing or access to legal counsel under claimed Executive authority to detain “enemy combatants.” After noting the importance of striking the proper constitutional balance between the government’s and the individual’s competing interests, Justice O’Connor underscored the importance of the “values that this country holds dear” and of the privilege of US citizenship. “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

Justice O’Connor reminds me that we can respect those with whom we don’t always (or often) agree.